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2015 (10) TMI 2419 - AT - Income TaxTransfer pricing adjustment - selection of comparable - Held that:- The issue relating to comparable nature of nine out of above eleven companies (companies in original grounds as well as additional grounds taken together), viz. other than Flextronics Software Systems Ltd. (Seg.) and Helios & Matheson Information Tech. Ltd. has come up for consideration before this Tribunal for assessment year 2007-08 itself and in the case of Sumtotal Systems India P. Ltd., Hyderabad [2014 (8) TMI 870 - ITAT HYDERABAD] has accepted the contentions for exclusion of these nine companies under consideration before it. Comparable nature of Flextronics Software Systems Ltd.(Seg) and Helio & Matheson Information Tech Ltd., has been rejected by coordinate bench of the Tribunal in the case of M/s. Axsys Heathcare Ltd. [2014 (6) TMI 371 - ITAT HYDERABAD] on the ground of High Turnover- functionally dissimilar. In the case of Sumtotal Systems India P. Ltd., Hyderabad [2014 (8) TMI 870 - ITAT HYDERABAD] wherein the Tribunal vide its order has rejected the contentions of Assessee for inclusion of all the six companies under consideration before it [Aztec Soft Ltd., Birla Technologies Ltd., Indium software India Ltd., Larsen & Toubro Infotech., PSI Data systems Ltd. (SEG) and VMF Softech Ltd.] Computation of deduction under S.10A - reducing the communication charges from the export turnover considering it as attributable to the delivery of computer software outside India, but not reducing the same from the total turnover - Held that:- this Tribunal in similar cases, including in assessee’s own case for the assessment year 2006-07 have directed the Assessing Officer to exclude the communication charges from export turnover as well as total turnover while computing deduction under S.10A of the Act. In this view of the matter and respectfully following the decision of the Bombay High Court in the case of Gemplus Jewellery (2010 (6) TMI 65 - BOMBAY HIGH COURT) and Sak Soft Limited [2009 (3) TMI 243 - ITAT MADRAS-D] we allow this ground of Assessee Penalty under S.271(1)(c) - difference in the value of Arm’s Length Price - CIT(A) deleted penalty levy - Held that:- The determination of the Arm’s Length Price is a result of an estimation on the basis of different variables by both Assessee and the Assessing Officer, and the difference in the value of Arm’s Length Price arrived at by the Assessing Officer was due to its re-working by using different filters and consequently different comparables. This difference is merely a difference of opinion, which cannot be termed as concealment of income on the part of Assessee. Further observing that there is no suggestion in the TPO’s analysis or the assessment or penalty orders that there was any inaccuracy or incorrect in the information submitted by Assessee, and relying on the decision of the Supreme Court in the case of CIT V/s. Reliance Petro-Products Pvt. Ltd.(2010 (3) TMI 80 - SUPREME COURT), the CIT(A) cancelled the impugned penalty. - Decided in favour of assessee.
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